The requirements for a waiver of a criminal defendant's right under Article
I, section 11, of the Oregon Constitution to be represented by counsel are well
established. For a waiver of that right to be valid, it must be knowing and voluntary.
E.g., State v. Meyrick, 313 Or 125, 132-33, 831 P2d 666 (1992). Before accepting a
proposed waiver of counsel, an Oregon court must assure itself that the waiver is knowing
and voluntary. In order for the court to have that assurance, it must be satisfied that the
defendant understands the disadvantages or risks of self-representation. The preferred
way for the court to satisfy itself on that point is for it to have a colloquy with the
defendant on the record about the risks of self-representation. Id. at 133. Here, there is
nothing in the record of the 1997 Nevada case that indicates that the Nevada court
discussed with defendant the risks of self-representation or otherwise took steps to assure
itself that defendant understood those risks. Without more, that record is insufficient to
establish that defendant's waiver of his right to counsel met the Oregon constitutional
standard for such a waiver.

The state argues, however, that the trial court erred in applying Oregon's
constitutional standard to the Nevada case. The state relies on our decision in State v.
Graves, 150 Or App 437, 947 P2d 209 (1997), rev den, 326 Or 507 (1998), as support for
its position. In Graves, the defendant challenged the use of a federal military conviction
in the calculation of his criminal history score on the ground that the conviction was
obtained without affording him a right to a jury trial, which is a right that is guaranteed to
criminal defendants by Article I, section 11, of the Oregon Constitution. We upheld the
use of the military conviction, explaining that "the validity of an out-of-state conviction[]
should be tested under the constitutional requirements of that jurisdiction or of the federal
constitution." Graves, 150 Or App at 441 (emphasis in original). Accordingly, the state
argues here that the trial court "should have tested the validity of the 1997 Nevada
conviction under the requirements of the U.S. and Nevada constitutions."

Defendant disagrees. Relying on State v. Davis, 313 Or 246, 251-54, 834
P2d 1008 (1992), he contends that the court was correct to evaluate the validity of the
Nevada conviction under Oregon constitutional standards. Davis involved a challenge to
the state's use of evidence obtained by Mississippi police officers through conduct that,
had it occurred in Oregon, would have violated Article I, section 9, of the Oregon
Constitution. The Supreme Court reasoned:

"If the government seeks to rely on evidence in an Oregon criminal
prosecution, that evidence must have been obtained in a manner that
comports with the protections given to the individual by Article I, section 9,
of the Oregon Constitution. It does not matter where that evidence was
obtained (in-state or out-of-state), or what governmental entity (local, state,
federal, or out-of-state) obtained it; the constitutionally significant fact is
that the Oregon government seeks to use the evidence in an Oregon
criminal prosecution. Where that is true, the Oregon constitutional
protections apply."

Davis, 313 Or at 254 (emphasis in original).

Defendant also attempts to distinguish Graves, suggesting that it applies
only when convictions from other jurisdictions are used to calculate a criminal history
score and not when they are used to prove an element of a crime. Alternatively, he asks
us to agree with the concurrence in Graves, 150 Or App at 444-48 (Edmonds, J.,
concurring), and conclude that Graves applied an incorrect analysis and should be
overruled.

We need not resolve the parties' dispute over which state's constitution
applies in assessing the validity of defendant's waiver of counsel because we conclude,
contrary to the state's argument, that both constitutions impose the same requirements.
The state cites Gallego v. State, 117 Nev 348, 23 P3d 227 (2001), as support for its
contention that the Nevada Constitution imposes a less rigorous standard for a court to
apply in determining whether to accept a proposed waiver of counsel, so we begin our
analysis with Gallego.

Gallego involved a defendant whose motion for self-representation had
been denied. In considering the propriety of that denial, the Nevada Supreme Court
explained:

"A criminal defendant has the right to self-representation under the Sixth
Amendment of the United States Constitution and article 1, section 8 of the
Nevada Constitution. However, an accused who chooses self-representation must satisfy the court that his waiver of the right to counsel
is knowing and voluntary. Such a choice can be competent and intelligent
even though the accused lacks the skill and experience of a lawyer, but the
record should establish that the accused was made aware of the dangers and
disadvantages of self-representation."

Id. at 356, 23 P3d at 233 (footnotes omitted). The standard that the court identified for
assessing whether a waiver of counsel is a knowing waiver is the same waiver standard
that applies under the Oregon Constitution. See, e.g., Jackson, 172 Or App at 423
(explaining that a prior, uncounseled DUII conviction could not be used to support a later
felony DUII charge unless the defendant was made aware of the risks and disadvantages
of self-representation).

The state argues, however, that the standard articulated in Gallego does not
necessarily apply to a waiver of counsel that precedes a guilty plea. It notes that the
Gallego court cited Faretta v. California, 422 US 806, 95 S Ct 2525, 45 L Ed 2d 562
(1975), as support for the requirement that defendants be informed about the risks of self-representation. The state reasons that the citation to a United States Supreme Court case
indicates an intention by the Nevada court to adopt the federal analysis on waiver of
counsel. The state then cites Patterson v. Illinois, 487 US 285, 108 S Ct 2389, 101 L Ed
2d 261 (1988), in which the Supreme Court articulated a nuanced approach to self-representation that involved

"asking what purposes a lawyer can serve at the particular stage of the
proceedings in question, and what assistance he could provide to an accused
at that stage [to determine] the type of warnings and procedures that should
be required before a waiver of [the right to counsel] will be recognized."

487 US at 298. Applying that analysis, the Court held in Patterson that full Faretta
disclosures were not required for an uncounseled, post-indictment interrogation; a
Miranda warning sufficed. The state argues that the pleading stage of a criminal case
resembles the post-indictment interrogation stage more than it does the trial stage at issue
in Faretta. The state reasons, therefore, that neither the Sixth Amendment nor Article 1,
section 8, of the Nevada Constitution requires full Faretta disclosures to support an
uncounseled guilty plea.

There are several problems with the state's analysis. First, the Gallego
court did not cite Patterson; it cited Faretta. Moreover, the rule enunciated in Gallego
does not, like the rule in Patterson, differentiate between a defendant's self-representation
rights at trial and her rights at the pleading stage. Gallego speaks only of "a criminal
defendant" and "an accused who chooses self-representation." 117 Nev at 356, 23 P3d at
233.

Second, the rule enunciated in Gallego was not based solely on federal
constitutional doctrine. In its discussion, the Nevada court explicitly cited both the
federal constitution and Article I, section 8, of the Nevada Constitution. Id. The latter
section provides that "in any trial, in any court whatever, the party accused shall be
allowed to appear and defend in person, and with counsel * * *." Nev Const, Art I, §8.
Nevada has routinely identified Article I, section 8, as a source of its self-representation
doctrine. Baker v. State, 97 Nev 634, 637 P2d 1217, 1218 (1981), overruled on other
grounds by Lyons v. State, 106 Nev 438, 445, 796 P2d 210, 214 (1990). The fact that
Nevada self-representation doctrine has been influenced by federal doctrine does not
mean that the state doctrine parallels every twist and turn of the evolving federal doctrine.
Finally, and most significantly, the general weight of Nevada law and
jurisprudence, consistently with Gallego, weighs against the rule posited by the state.
Nevada Supreme Court Rule 253 (2003), for instance, makes no distinction between the
pleading phase and other phases of the criminal process, and it provides:

"1. Where a defendant appearing in district court chooses self
representation, the court should make a specific, penetrating and
comprehensive inquiry of the defendant to determine whether the defendant
understands the consequences of his or her decision to proceed without
counsel. * * *

"2. The court should inform the defendant of some of the dangers,
disadvantages and consequences of self representation:

"(a) Self representation is often unwise and a defendant may conduct
a defense to his or her own detriment;

"(b) A proper person defendant is responsible for knowing and
complying with the same procedural rules as lawyers, and cannot expect
help from the judge in complying with these procedural rules;

"(c) A defendant proceeding in proper person will not be allowed to
complain on appeal about the competency or effectiveness of his or her
representation;

"(d) The state will be represented by experienced professional
counsel who will have the advantage of skill, training and ability;

"(e) The proper person defendant is not entitled to special library privileges;

"(f) A defendant unfamiliar with legal procedures may allow the
prosecutor an advantage, may not make effective use of legal rights, and
may make tactical decisions that produce unintended consequences; and

"(g) The effectiveness of the defense may well be diminished by
defendant's dual role as attorney and accused.

"3. The court's canvass of the defendant may include questions in the
following areas:

"* * * * *

"(h) Defendant's understanding of the pleas and defenses which may
be available[.]"

(Emphasis added.) Thus, by its terms, the Nevada rule applies at the pleading stage as
well as the trial stage. Furthermore, in Davenport v. State, 112 Nev 445, 477-78, 915 P2d
878, 880 (1996), the court explicitly rejected an argument that convictions obtained
through uncounseled guilty pleas should be evaluated by a different standard than should
convictions entered after an uncounseled trial when the convictions are collaterally
attacked:

"[I]n order to rely on a prior misdemeanor judgment of conviction for
enhancement purposes, the state had the burden of proving either that the
defendant was represented by counsel or validly waived that right * * *.

"[I]t is clear that the primary focus of the analysis * * * is on whether the
defendant was represented by counsel when convicted of a prior offense,
regardless of whether that conviction was the result of a guilty plea or a
trial."

(Internal quotation marks omitted.)

In summary, we conclude that the Nevada Constitution, like Oregon's,
requires that an uncounseled guilty plea be preceded by a knowing waiver of counsel that
is based on an awareness by the defendant of the risks of self-representation. Because the
two states' standards are essentially identical, we reject the state's argument that the
Oregon court applied an incorrect standard in evaluating the validity of defendant's
waiver of counsel in the 1997 Nevada case.

As a final argument, the state contends that, in the absence of affirmative
evidence that defendant was not aware of the risks and disadvantages of self-representation, the Oregon court should have presumed that the Nevada court regularly
performed its official duty to ensure that defendant was aware of those risks. In support
of its argument, the state relies on OEC 311(1)(j) and (x), which create evidentiary
presumptions that "[o]fficial duty has been regularly performed" and that "[t]he law has
been obeyed." The state did not make the argument about presumptions below, so it
cannot raise it now. ORAP 5.45(3); State v. Amaya, 336 Or 616, 628-29, 89 P3d 1163
(2004).

Based on the foregoing, it follows that the court did not err in concluding
that defendant's waiver of his right to counsel in the 1997 Nevada case was not a valid
waiver and that evidence of the 1997 conviction could not be admitted in the Oregon
case.